Tag Archives: transgender

The assistant professor probably thought she was safe from the madcap race-and-gender left since she was of mixed-race, queer and lecturing on Sappho. But she was woefully wrong. Black-clad demonstrators called her a “race traitor for not opposing the Humanities Syllabus, and they insisted she was “ableist” and a “gaslighter,” a relatively new insult of the left meaning someone who makes disadvantaged people doubt the reality of their oppression.

The teacher may well have felt doubly secure because she had revealed that she suffered from post-traumatic stress disorder and doubted she could complete the lecture if protesters appeared.

The scene was Reed College in Portland, Oregon, and in an article in the September 9th issue of The Economist, the assistant professor teaching Sappho, Lucia Martinez Valdivia, confessed she is afraid of her students, just as another professor anonymously confessed the same thing to Vox in the most famous college article of 2015, “I’m a Liberal Professor, and I’m Afraid of My Students.”

“I‘m intimidated by these students,” said the Reed professor in her blog, “I am scared to death to teach courses on race, gender or sexuality, or even texts that bring these issues up in any way. … I’m at a loss as how to begin to address it, especially since many of these students don’t believe in historicity or objective facts (they denounce the latter as being a tool of the white cis-heteropatriarchy).”

Denying facts and running roughshod over dissent are not the cutting edge of the campus left. This is a newer phase of the revolution when the revolutionaries turn on their own. We had a glimpse of this at Evergreen State College a few weeks ago when Bret Weinstein, perhaps the left-most professor on campus, was attacked and abused by the left-most students for not leaving the campus on the day the young Jacobins ordered all white people to clear out. So, Weinstein was forced to relocate his family and go on the Tucker Carlson Show on Fox.

A few weeks after the Reed incident, the college invited Kimberly Peirce, who may have looked like a safe choice. She is the “gender-fluid” director of “Boys Don’t Cry,” (1999) praised as the first sympathetic feature film about transgendered people. But no, the hard leftists at Reed were furious that Peirce had used Hillary Swank, a non-trans actor, as the lead. So, protesters ripped down posters promoting the event, and put up their own, saying “Fuck Your Transphobia” and “Fuck this cis white bitch” (“CIS” is a disparaging word of people still identifying with their birth sex.)

At Reason, Robbie Soave wrote: “This is the elite American college campus: a place where even queer, leftist professors and filmmakers are afraid of being sent to the guillotine by self-professed radical students.”

The Economist reported that Humanities courses seem to be a recurrent source of friction because of their “Eurocentric” and “racist” content and because their authors are predominantly male and white.

Some students at Reed admit they are afraid to share their feelings with other students for fear of being targeted by campus protesters. But some students seem to resent the hard-left activists. One black student shouted down the activists: “This is a classroom. This is not the place. We are trying to learn. We are freshman students.” The Economist attached a subhead to this comment: “Thermidorian Reaction” but we are likely to see a good many more teen Robespierres before Thermidor arrives.

John Leo is the editor of Minding The Campus, dedicated to chronicling developments within higher education in an effort to restore balance and intellectual pluralism to our American universities. His popular column, "On Society," ran in U.S.News & World Report for 17 years, and was syndicated to 140 newspapers through the Universal Press Syndicate.

The dislocation of reality continues apace, helped by academics who think renaming things can induce the physical world to alter its course. On the Women’s Studies List, which has existed for more than 25 years and has over 5,000 subscribers, yet another acrimonious discussion recently unfolded about who is excluding whom.

Turns out some trans feminists don’t understand why some women don’t embrace their new label of “cisgender.” As one post helpfully explained: why should anyone object? “Cisgender” merely means “non-transgender.” Those objecting are seen as determined to conform to the dominant society. Evidently, margins and centers still exist, but their occupants are to change places. A reversal of privilege, as Katharine Burdekin, the British feminist writer of speculative fiction, characterized many revolutions. She warned that such a reversal in the case of gender might get no nearer to producing a better society than the old male privilege did, and might possibly be worse.

Today, for all the academic talk of “diversity”—written into all levels and aspects of American universities, with growing numbers of administrators and officers designated to oversee it—a new and rigid orthodoxy is upon us. This was adumbrated a few years ago when Women’s Studies Programs underwent a sea change, renaming themselves with some variation of Women, Gender, and Sexuality (WGS) Studies. Not surprisingly, the change accompanied the ever greater emphasis on queer theory, transgender studies, masculinity (as in the currently popular term “toxic masculinity”), and other overarching interpretations of the world according to new dogma.

Not that this is new. When I was in Women’s Studies in the 1980s and early 90s, a certain apologetic tone had already spread among heterosexuals, and major quarrels over the meaning and place of lesbian identity had gone on since the 1970s. But in those medieval times, male and female were still understood to refer to biological realities (sex), while masculine and feminine were the social roles (gender) to be dismantled. Over the years, however, the antagonism toward heterosex increased, promoted by ever-looser definitions of “sexual harassment” and ever more exaggerated claims of the unrelenting injuries done to women by the white heteronormative patriarchy of the United States. This is what has led us to “microaggressions,” “safe spaces,” and “trigger warnings.”

Some retrograde heterosexual women objected to the redefining of heterosexuality as craven conformity or Stockholm syndrome – though not many within the feminist cadres that quickly multiplied in the university world. Interestingly, women who thought biology was pertinent found unlikely allies among radical feminists, who, while promoting lesbianism, believed profoundly that male/female differences existed and, indeed, explained much about the horrors of life: wars, violence, “rape culture,” ceaseless sexual harassment, pornography, environmental degradation, and the numerous other problems that were laid at the door of the capitalist/ imperialist/western patriarchy.

These radical feminists were highly critical of the sudden vogue for transsexualism. They did not believe that a man’s claim to feel, or to have always felt, that he was really female compensated for a lifetime of male privilege and magically turned him into a woman. Janice Raymond, for example, in her 1979 book The Transsexual Empire: The Making of the She Male, argued that transsexuals believed so profoundly in gender roles (the very thing feminists were supposedly combatting) that they were willing to mutilate their bodies in order to live out the other role.

Decades later, the debate continues, but some things have definitely changed. Those who dare make criticisms of the transsexual phenomenon are now labeled TERFs [Trans-Exclusionary Radical Feminists], clearly intended as a slur. The proper attitude is obligatory acceptance of each new sexual redefinition and the new regulations (such as Obama’s bathroom edict) that accompany it.

By now even formerly all-female schools such as Smith College are accepting applications from individuals who “identify as female,” regardless of what sex they were “assigned at birth.” As Smith’s FAQ on the subject explains:

Are trans women eligible for admission to Smith?

Applicants who were assigned male at birth but identify as women are eligible for admission.

Are trans men eligible for admission?

Smith does not accept applications from men. Those assigned female at birth but who now identify as male are not eligible for admission.

Under this newly clarified policy, what is required of applicants to be considered for admission?

Smith’s policy is one of self-identification. To be considered for admission, applicants must select ‘female’ on the Common Application.

These phrases reveal how far the new identity game has gone. It is not those undergoing “sex reassignment surgery” who are exempted from the horrors of sexual dimorphism. Rather, all infants, even the vast majority born with no sexual anomalies, are now supposed to have been “assigned” a sex at birth, just as they were “assigned” bipedalism so they could adapt to a world of sidewalks and staircases….

Sexual dimorphism is passé. Yet, at the same time, quite paradoxically, it is everywhere affirmed and corrective measures are required to overcome the arbitrary categories imposed by the patriarchy—a rather circular argument once one disconnects it from biology. Forget that sexual dimorphism is, in fact, universal, found in all cultures and in most of the animal world – of which we are a part. The existence of some anomalies (e.g., intersexed individuals, or babies with chromosomal or other variations) does not alter this.

Five Sexes, Or Is That Too Few?

As Richard Dawkins once said, in criticizing Anne Fausto-Sterling’s argument (much lauded in feminist circles) that there are five sexes, the existence of dawn and dusk does not cast doubt on the reality of day and night. Regardless of what we call them, day and night are natural phenomena explained by something outside of ourselves. If primary sexual characteristics are socially imposed, shouldn’t The Vagina Monologues be banned for being exclusionary?

Surprise! That is, in fact, happening (e.g., at Mount Holyoke College, which in 2015 canceled its tradition of annual performances of the play). Not, of course, because men are objecting that they don’t get equal time to celebrate their genitals. The problem, it seems, is that the play offers a narrow and reductionist view of what it means to be a woman, and thereby excludes transgender women who don’t have vaginas.

But some reprobate events go on, such as the Women’s March on Washington, in which hundreds of thousands of women participated wearing pink “pussyhats,” and evidently believing they had pussies. Leaving aside the various hysterical speakers at the March, a notable presence who merits more attention than she has received was Donna Hylton, a black activist and prison reformer. She always brings up the years she spent in prison (27, to be precise) as if this bolsters her credentials as a member of an oppressed minority group. But she fails to mention what she was imprisoned for: participating in the kidnapping, rape, torture (for more than two weeks), and murder of an elderly white man in 1985.

One of the better-known organizers of the Women’s March is an unapologetic promoter of hate. Linda Sarsour, a Muslim supporter of Sharia law, wrote on Twitter that critics of Islam such as Brigitte Gabriel and Ayaan Hirsi Ali are “asking 4 an a$$ whippin’’ [sic] and “I wish I could take their vaginas away—they don’t deserve to be women.” She obviously hasn’t grasped the current orthodoxy by which anyone can “identify as” a woman–and vaginas have nothing to do with it. For her part, Ayaan Hirsi Ali criticized the March and wondered why hundreds of thousands of women do not mobilize in the U.S. to protest the actual sexual enslavement of girls in various Muslim countries, along with the reality of female genital mutilation, honor killings, and other assaults on basic human rights.

But in the happy world of American academe, categories of sexual and gender identity just grow and grow, and acronyms along with them. Today we have not only the labels, but courses and administrators devoted to LGBTQIA (the A, for asexual, is merely the latest accretion). In recent years, the proliferation of identities has gotten completely out of control and the game is openly played in hiring and even in the exercise of free speech–who is entitled to teach, to speak, to pose challenges, and who had better shut up if lacking the requisite identity.

And this political brow-beating isn’t changed by the vogue for “intersectionality”—the study of the interactions of multiple oppressed identities, which has allowed the politicization of academic life to continue unabated. Today, laying claim to an oppressed identity (and there are many beyond race) automatically justifies the demand for capitulation and redress. In our book Professing Feminism (1994), Noretta Koertge and I labeled this unseemly competition “the oppression sweepstakes.” At my university, a recent survey designed to gauge how welcoming campus life is of diversity included a page on which people could identify their sex. About ten categories were provided from which to choose.

Of late, even anti-biology feminist Judith Butler is having second thoughts about the matter of sexual identity. Decades ago, she famously insisted that gender — by which she meant sexual identity — is pure “performativity” or “performance” (confusingly, she used both terms). There is no preexisting subject, she said; no “I” before discourse. But the trans fad has caused her to reconsider. In a 2014 interview, she confessed that in her 1990 book Gender Trouble she did not think “well enough about trans issues.”

When it comes to the authenticity of trans identity, she no longer doubts the reality of the subject or insists that discourse creates people who “perform” gender. She never intended to suggest that gender is a fiction or that a person’s sense of gender was “unreal.” Instead, she now sees she should have paid more attention “to what people feel, how the primary experience of the body is registered, and the quite urgent and legitimate demand to have those aspects of sex recognized and supported.” Note again the conflation of sex and gender.

Butler, in other words, has had to alter her line a bit, to stay in step with current orthodoxies. She certainly does not want to say that trans people are into the “performativity” of the sex they want to be or claim they really are – though she had no problem saying that about most people born male and female.

So quickly do redefinitions of reality become entrenched these days that the British Medical Association was recently reported to have sent out directives to doctors to use the term “pregnant people”—rather than “expectant mothers”—so as to avoid offending trans folks. The BMA also suggested adopting the language of “assigned male or female” rather than “biologically male or female.”

Alas, reality is not that malleable. Females give birth, males do not, in all mammals, regardless of what the individual mammal may do. I can’t believe I’m saying this, but there it is. Such is the state of weirdness these days in academic feminism, and elsewhere.

Daphne Patai is professor emeritus in the Department of Languages, Literatures, and Cultures at the University of Massachusetts Amherst. She is the author of, "What Price Utopia? Essays on Ideological Policing, Feminism, and Academic Affairs," among other books,

John Fund, writing in the National Review last week, drew attention to the vote in Congress last year to increase by seven percent the $100 million budget of the Office for Civil Rights (OCR) in the Department of Education. Fund is especially critical of the Republican Congressmen whose vote seemed to reflect bizarre indifference to OCR’s role in creating a destructive regime of progressive ideology. Lacking statutory authority for many of its actions, OCR resorted to extras-procedural maneuvers such as “Dear Colleague” letters that superficially offer only “advice,” but are in reality backed by a hard threat of withdrawing federal funding from schools and colleges that do not obey.

OCR is notorious for its decisions in the last few years to lower the standard of evidence needed to convict individuals accused of sexual assault; to expand dramatically the definition of sexual harassment; to eviscerate due process for the accused; to transfer to Title IX coordinators vast new powers; to collapse the functions of investigator, counselor to both complainant and accused, judge, jury, and enforcer into a single extra-legal office; and to invent the new category of transgendered rights in a novel extension of Title IX of the Higher Education Act.

We join John Fund in deploring the decision of Congress to reward OCR’s egregious behavior with even more funding. Last year’s seven percent increase is not the end of the story. Fund cites Senator Dean Heller (R-NV) as one of 22 senators who proposed in May 2016 increasing OCR’s budget by 28 percent. That idea collapsed when OCR invented out of thin air its new “Dear Colleague” standard for transgendered bathrooms, locker rooms, and showers, but even after that Republican senators have supported a three percent increase in OCR’s budget.

Congress operates in mysterious ways. We might charitably guess that conservative legislators have struck some deal with their progressive colleagues to the effect that the spigot for OCR will continue to flow provided some project favored by conservatives is also funded. NAS is not close enough to the corridors of power to form a close guess as to why leaders elected to protect individual rights and liberties and the rule of law would be willing to cast crucial votes in favor of a lawless regime of identity-group authoritarianism.

NAS has an additional interest in these developments. As Fund points out, Gail Heriot along with Peter Kirsanow wrote a long letter to the chairmen of the Senate and House Appropriations Committees, Thad Cochran and Hal Rogers. The letter drew attention to OCR’s misbehavior and called on Congress not to increase OCR’s budget. Heriot and Kirsanow serve on the U.S. Civil Rights Commission, and Heriot is also a member of the board of directors of the National Association of Scholars.

Not only did the appropriation committees fail to heed the Heriot-Kirsanow counsel, but the Senate took the gratuitous step of adding to its budget report a small measure slapping them down by directing them not to send any more letters on U.S. Civil Rights Commission letterhead.

We at the National Association of Scholars deeply regret the decisions by Congress to enable the continuing mischief by OCR. There have been numerous expressions of outrage by members of the public and by institutions at OCR’s power grabs and poor judgment. We believe that outrage is warranted and that members of both parties in Congress should act to curtail OCR’s self-granted license to issue rules that lack any legitimate basis in law. We also deplore the Senate’s treatment of Gail Heriot and Peter Kirsanow who, more than any other Civil Rights Commissioners, have paid fair-minded attention to a new swarm of abuses stemming from OCR’s aggressive political agenda. Their rights should be restored in the next legislative action on these matters—which we hope will also include a substantial decrease in funding for OCR.

The incoherence of the new Office for Civil Rights transgender policy becomes even clearer when one looks beyond bathrooms to locker rooms, and the athletic teams they serve. The “Dear Colleague” letter states that “Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.”

Broad, but Not Too Broad

Note that OCR provides no guidance as to when a broad generalization becomes “overly broad.” In fact, there would seem to be a real possibility that a college or university could be found in violation of Title IX for complying with NCAA regulations.

For example, the “Dear Colleague” letter declares that “Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.” But the NCAA Inclusion of Transgender Student Athletes policy states that “A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.” MTFs and FTMs, however, are not treated the same, since “A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team.”

As if this were not confusing enough, the NCAA inclusion policy also states that “A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone … may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing that team status to a mixed team.” But by contrast, “A trans female (MTF) student-athlete being treated with testosterone suppression medication … may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment.”

In short, does OCR’s new command “that a school must not treat a transgender student differently from the way it treats other students of the same gender identity” apply to the locker room but not to the playing field? What about hotel rooms when the teams travel? Will NCAA have to revise its extensive regulations of transgender activity to conform to the new transgender diktats from Washington? Who knows?

Although still struggling with its insistence that sex and gender identity are the same thing — “… the same sex (i.e., the same gender identity)” — OCR obviously believes that sex not only still exists but can actually trump gender when distinctions based on it not only involve contact sports but also different sex-based “competitive skill.” Does this mean that a disproportionate number of men at the top of math-intensive STEM departments does not suggest a Title IX problem? (Larry Summers, are you paying attention?) Who knows?

More Gender Equity Conflict and Confusion

Confusion and conflict, of course, are not limited to locker rooms and athletic fields. Presumably, a college or university would worry about violating anti-discrimination laws if it complied with an incoming freshman’s request not to be assigned a roommate who was black or Jewish. Should it have a similar concern about a freshman woman’s request not to be assigned to a room with a transgender woman?

If there are as many transgender students as the administration’s recent flurry “guidances” and lawsuits suggests, then OCR may well have to revise its record-keeping categories and provide schools and colleges with new reporting requirements. On June 15, for example, OCR sent out another sweeping “Dear Colleague” guidance on increasing the participation of students in fields, especially career and technical fields, whose sex is underrepresented.

Although this “guidance” noted that it used the terms sex and gender “interchangeably,” it curiously referred only to males and females and never once used the term “transgender.” Thus left unclear, unexplained, and unguided is how colleges and universities should regard athletic participation and especially scholarships — watched like a hawk by the NCAA, with rigid quotas for men and women— of transgender students. Or how a community college should count an auto mechanics student transitioning from female to male. Since her biological sex remains female even though her gender identity is male, I wondered here, “does the student add to the number of students in that class who are ‘non-traditional for their sex,’ or simply add to the number of guys?” In fact, if ‘gender identity’ determines sex as OCR unilaterally insists, why does it continue to use the term ‘sex’ at all in determining who is under-represented?

LGBT Plus 11 Other Letters

For all of its postmodern deconstruction of “sex” as most people understand it, the Obama administration’s new transgender policy ironically insists on maintaining what many maintain is the old-fashioned binary view of sex (or gender) as male or female. Thus, one is one or the other, or transitioning from one to the other. But what about the “B,” bisexuals, in LGBTQ, not to mention the more amorphous “Q,” Queer? Can they be restricted to bathrooms and locker rooms that correspond to the sex “assigned” to them at birth? Are they free to choose as the spirit moves them?

Once “sex” no longer means sex, the possibilities of what groups are protected by Title IX and Title VII become almost endless, as revealed by one of Wesleyan University’s “themed” housing options for LGBTTQQFAGPBDSM students. “Open House is a safe space for Lesbian, Gay, Bisexual, Transgender, Transsexual, Queer, Questioning, Flexual, Asexual, Genderfuck, Polyamorous, Bondage/Discipline, Dominance/Submission, Sadism/Masochism (LGBTTQQFAGPBDSSM) communities and for people of sexually or gender dissident communities.”

Don’t Forget NGTs or NGBs

Speaking of safe spaces, the new transgender policy does not fit well at all with the pervasive panic over campus sexual assault. As Yale law professor Jeannie Suk wrote in “The Transgender Bathroom Debate and the Looming Title IX Crisis,” her recent New Yorker article, “having, in the past several years, directed the public toward heightened anxiety about campus sexual assault, the federal government now says that to carry that discomfort into bathrooms is illegitimate because it is discrimination.” A non-transgender girl (must we now speak of NTGs and NTBs?) who’s told she must share a bathroom with boys, Suk notes, would have a Title IX complaint. “But would she not have a similar claim about having to share with students who identify as girls but are biologically male? Well, not if her discomfort and ‘emotional strain’ should be disregarded.” And, as Ed Whelan writes on National Review Online’s Bench Memos, “The Obama administration fails to offer any coherent reason why her discomfort in the latter situation should be disregarded.”

TERF Wars

If OCR had bothered to gather public comment it would have learned of a vocal minority of influential feminists who believe, as former National Organization of Women leader Kathleen Stone wrote recently in opposition to a pending transgender bill in Delaware, that “the gender identity movement that is sweeping the country is bringing with it a multitude of problems for women and girls.” One “is the loss of safe sex-segregated spaces such as public bathrooms, changing rooms and even domestic violence shelters.” Another is the “much more significant problem for women is that it becomes impossible to name biological sex as the source of women’s oppression, subjugation and inequality in a patriarchal world.”

Stone is far from alone. Michelle Goldberg had a fascinating article in the New Yorker two years ago, “What is a Woman? The Dispute Between Radical Feminism and Transgenderism,” describing the bitter feminist civil war between today’s dominant transgender orthodoxy and usually older radical feminists “TERFs” (trans-exclusionary radical feminists), 37 of whom, “including major figures from the second wave, such as Ti-Grace Atkinson, Kathie Sarachild, and Michele Wallace,” recently issued a statement titled “Forbidden Discourse: The Silencing of Feminist Criticism of ‘Gender,’” describing “their ‘alarm’ at ‘threats and attacks, some of them physical, on individuals and organizations daring to challenge the currently fashionable concept of gender.’”

Some of those attacks, for example, have been aimed at women associated with the Michigan Womyn’s Music Festival, which since 1976 through 2015 met on 650 wooded acres near Lake Michigan and described itself as “an event for ‘womyn born womyn’ only.” Lisa Vogel, the founder and director, accused the meeting’s feminist critics of “targeting Michfet with McCarthy-era blacklist tactics.” Michfest succumbed to the attacks and closed after its 2015 gathering.

TERFs, although they remain radical feminists, are increasingly unwelcome on college campuses. “The most dramatic change in the perception of transgenderism can be seen in academia,” Goldberg wrote. “Particularly at liberal-arts colleges, students are now routinely asked which gender pronoun they would prefer to be addressed by: choices might include ‘ze,’ ‘ou,’ ‘hir,’ ‘they, or even it.’” One younger TERF told Goldberg that she “would get called out” if she were to say in a typical women’s studies class today, “Female people are oppressed in the basis of reproduction.” Some students would respond, she said, “What about women who are male?”

Judith Butler, perhaps the most prominent American feminist academic, has said that she sees “no problem with women having a penis, and men having a vagina.” Perhaps taking its cue from Butler, the New York Abortion Access Fund recently stopped using the word “women” in its mission statement, because “[w]e recognize that people who identify as men can become pregnant and seek abortions.” This may well be the new orthodoxy on campus and in the progressive precincts of the Obama administration, but it is not widely shared elsewhere.

Far from being settled — in law, common understanding, or even in progressive opinion — the relationship between sex and gender and the rights that are associated with them remain hotly contested terrain, and the attempt of government bureaucrats, isolating themselves from public comment, to pronounce them settled should not be tolerated by Congress or the courts.

Disingenuousness or Duplicity

No discussion of the evolution of anti-discrimination law in the Obama era and before can be complete without trying to sort out opinions reasonably changed over time, disingenuousness, and outright duplicity. Most Minding The Campus readers are familiar with the sad story of American liberalism’s abandonment of its more than century old commitment to colorblind racial equality in favor of race-based preferential treatment as soon as the ink had dried on the embodiment of the “without regard” colorblind principle in the 1964 Civil Rights Act. But that was only the beginning.

Take Chai Feldblum (Please!), the EEOC commissioner discussed above who had previously announced her desire “to revolutionize societal norms” regarding sex and gender. In her recent letter to the New York Times, also discussed above, arguing contra Yale law professor Peter Schuck that protecting transgenders from sexual stereotypes involved no “novel interpretations of the law,” Feldblum insisted that these rulings “are common-sense applications of a federal anti-discrimination law that prohibits employers from taking sex into account.”

Feldblum would have you believe that all she and the EEOC require is that employers be sex-blind, just as they are required to be race blind. But wait a minute! Everyone knows that this EEOC, this administration, and indeed the whole progressive “community” detests race blindness with a passion, regarding it as simply the continuation of racism. Indeed, one of the reasons ENDA failed repeatedly is that the protests of its advocates that preferential treatment was not being sought fell on ears deafened to that argument by the rapid transition from equal treatment to affirmative action.

At one point, as I discussed here (“Does Sexual Equality Require Special Treatment?”) several years ago, ENDA advocates tried to combat this fear by inserting a provision that purported to prohibit “preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance,” i.e., their underrepresentation. But that provision, I noted, did not bar preferences for other reasons, such as to promote “diversity” or compensate for past discrimination. And even if ENDA had passed and this provision really did succeed in prohibiting preferential treatment, wouldn’t that mean that sexual orientation and gender identity lack the “protection” awarded to race and ethnicity? Do ENDA supporters, Feldblum, the EEOC, and OCR really believe in such a double standard of civil rights?

Feminism from the ERA to the Death of Privacy

But the mother (if you’ll pardon the gender-biased expression) of all liberal contradictions must be the glaring conflict between the feminist argument in favor the the Equal Rights Amendment and today’s predicted but still improbable struggle progressives have launched over bathroom access. Looking back in 1981 at the failure of the failure of the ERA, Betty Friedan wrote in a letter to the New York Times that it “bogged down in hysterical claims that the amendment would eliminate privacy in bathrooms” and “encourage homosexual marriage.” The Washington Post’s Judy Mann, writing the next year, attributed Virginia’s failure to ratify the ERA to opponents who “trotted out the old canards about homosexual marriages and unisex restrooms.” Even though the ERA did not pass, those “canards” don’t look so canard-like today.

It is clear that the bathroom issue was a — perhaps the — leading nail in the coffin of the ERA. In WHY WE LOST THE ERA (1986), which remains in many ways one of the best analyses of ERA’s defeat, Jane Mansbridge argued that “[t]he unisex toilet issue fed the fervor of the anti-ERA forces by giving them something absolutely outrageous to focus on.” Mansbridge, perhaps with what now looks like irony, notes that proponents of the ERA found that argument so outrageous they often brought it up themselves, using “unisex toilets over and over to imply all other arguments against the ERA were equally exaggerated.”

ERA proponents were able to dismiss what was dubbed “the potty issue” as an outrageous canard because dominant academic, legal, and media opinion was virtually unanimous in proclaiming that the right of privacy would prevent opening the bathroom door to members of the opposite sex. Typical was an influential 1971 Yale Law Journalarticle by four Yale professors, led by Thomas Emerson, the iconic liberal civil libertarian, who declared that “the right of privacy would permit the separation of the sexes in public rest rooms” and other settings where disrobing occurs. Philip Kurland of the University of Chicago acknowledged in a 1970 Senate hearing that if the ERA invalidated all classifications by sex separate restrooms would be nullified, but he added that, although ERA’s language was absolute, “I would have to submit that the judiciary does not conclude that because the language of legislation is a clear mandate that they are not free to indulge in other devices for its construction.” (Quoted by Mansbridge, WHY WE LOST…, p. 283.) Indeed.

Ruth Bader Ginsburg, then a prominent Columbia law professor and ACLU lawyer, made the same point in a 1975 Washington Post OpEd. ”Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required,” the future Supreme Court justice wrote, “by regard for individual privacy.“

The regard for privacy, or rather the lack of such regard, by progressives has come a long way since the now quaint-sounding arguments for the ERA. The term “privacy” does appear a dozen times in the DOJ/DOE/OCR “Dear Colleague” transgender policy letter, but with only one exception all refer to “protecting transgender students’ privacy” because doing so “is critical to ensuring they are treated consistent with their gender identity.” For example, the letter warned, “[t]he Departments may find a Title IX violation when a school [fails] to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.” With regard to any privacy concerns others students may have, the letter specifically states that transgender students may not be denied access to facilities or programs because of “others’ discomfort with transgender students.”

Many may regard it as ironic, but given the policy preferences embodied in the “Dear Colleague” letter it is not surprising that the first claim to a privacy right violation to reach the courts after North Carolina’s H.B. 2 became law was filed by transgender plaintiffs in the Lambda lawsuit mentioned above. They claim, among other things, that “[t]here is a fundamental right of privacy in preventing the release of, and in deciding in what circumstances to release … information of a highly personal and intimate nature” and that “H.B. 2 requires the disclosure of highly personal information regarding transgender people to each person who sees them using a restroom or other facility inconsistent with their gender identity or gender expression.”

Two of the plaintiffs are transgender men — one an employee of the University of North Carolina at Chapel Hill and the other a student at the University of North Carolina at Greensboro — who claim that forcing them to use the women’s restroom would “cause substantial harm to [their] mental health and well-being” and “cause [them] to experience significant anxiety as [they know] that it would be distressing for [them] and uncomfortable for others.”

What Ruth Bader Ginsburg Said

Representing the concern of those “others,” the Gloucester County, Virginia, school board another wants the Supreme Court to defend another, more traditional view of privacy. In its request for a stay of the Fourth Circuit’s decision in Grimm while it prepares an appeal to the Supreme Court, the school board argues that “[r]eplacing the term ‘sex’ in Title IX with the term ‘gender identity’ … [n]ot only is … contrary to the historical norms of civilization, it is contrary to the intent of Title IX and well-established law recognizing the dignity and freedom of bodily privacy.” The guidance “issued by OCR, DOE, and DOJ” does not, the school board asserts, “consider the bodily privacy rights of students.”

The courts will have to decide whether to defer to OCR’s claim of legal authority for its privileging the privacy rights of transgender students and staff, who want to avoid the anxiety, stress and possible threat involved with being required to use facilities that correspond with their sex but not their gender identity, over the privacy rights of of the non-transgendered, who feel uncomfortable and threatened by the presence of those of the opposite sex in their bathrooms and locker rooms.

For the courts to uphold the legality of the OCR/DOE/DOJ guidance, they would have to conclude that the privacy arguments of Thomas Emerson, Ruth Bader Ginsburg, and other ERA advocates were wrong, or at least no longer right. They could do so, however, by acting in the manner Ruth Bader Ginsburg also endorsed in another of her pro-ERA arguments, a 1979 lecture at Washington University: “Boldly dynamic interpretation, departing radically from the original understanding,” she insisted, “is required to tie to the fourteenth amendment’s equal protection clause a command that government treat men and women as individuals equal in rights, responsibilities, and opportunities.”

ERA failed to pass, but over the years courts (with Justice Ginsburg’s help) have proved they are more than equal to the task. Moreover, the Obama administration’s zealous progressives in the EEOC and OCR are nothing if not boldly dynamic interpreters, eager to depart radically from original understanding or clear legal text whenever and wherever necessary, as EEOC Commissioner Chai Feldblum put it in defending EEOC’s creation of new transgender rights, to “revolutionize societal norms.”

Although it seems as though the transgender tsunami has been howling forever, in fact it hit the shore of national fixation only four months ago, in March, when the North Carolina legislature passed, and Gov. Pat McCrory signed, House Bill 2, which restricted access to the state’s public sex-segregated restrooms by, well, sex, as defined by one’s birth certificate or evidence of sex reassignment surgery. (For those interested in bringing their vocabulary up to required code, SLATE helpfully points out that “[t]he increasingly preferred term is gender confirmation surgery.”)

A firestorm of controversy soon followed, and has shown no signs of abating. Four days after H.B.2 became law Lambda Legal, the ACLU, and Equality North Carolina filed a lawsuit against Governor McCrory, Attorney General Roy Cooper, and the University of North Carolina on behalf of a UNC-Chapel Hill staff member, a UNC-Greesboro student, and a North Carolina Central University law professor.

Shortly thereafter, the Dept. of Justice sent letters to Gov. McCrory and the University of North Carolina claiming that H.B.2 violated Title VII and Title IX of federal civil rights laws. A few days later, on May 13, the Departments of Justice and Education announced a “significant guidance” in the form of a “Dear Colleague” letter sent to all school districts in the country that dropped an administrative nuclear bomb — declaring, among other things, that “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”

Making that argument crystal clear, in announcing the federal lawsuit against North Carolina, Vanita Gupta, head of the Justice Department’s Civil Rights Division, declared: “Here are the facts. Transgender men are men — they live, work and study as men. Transgender women are women — they live, work and study as women.” Thus the federal government has declared it “facts” that transgender men and women do not simply live and work as, and identify with, the opposite sex; they “are” the opposite sex.

No longer limited to bathrooms, the new edict also covers athletic activities, locker rooms, dormitories from K-12 through universities. Next came the dueling lawsuits, with the United States (here) and North Carolina (here) filing complaints against each other. In addition to North Carolina, eleven states have filed a lawsuit claiming that the Obama administration’s position “has no basis in law.” Finally (at the moment), the Alliance Defending Freedom has filed a complaint defending H.B. 2 on behalf of North Carolinians for Privacy, an organization that includes both university and K-12 students.

Legal Issues

The Departments of Justice and Education of course must ensure that the nation’s schools and colleges comply with applicable anti-discrimination laws, but Yale law professor emeritus Peter Schuck calls their interpretation “novel” in a New York TimesOpEd. Harvard law professor Jeannie Suk agrees, noting in a recent New Yorker article, the Obama administration’s interpretation of those laws is “new and surprising.”

Those of us who are not Ivy League law professors need not be so circumspect. The transgender ukases from Obama apparatchiks are breathtaking in their reach and scope — both in their attempt to promote a radical transformation of our society’s understanding of sex itself, and hence of our understanding of the nature of sex discrimination, as well as in their ignoring or rewriting inconvenient statutory law that is extreme even by the standards of this administration, which has time and again run roughshod over traditional separation of powers barriers.

As Gail Heriot, University of San Diego law professor and member of the U.S. Commission on Civil Rights, demonstrated in her May 16 testimony before the House Judiciary Committee, “It would be an understatement to say that the Transgender Guidance goes beyond what Title IX, which was passed in 1972, actually requires. If someone had said in 1972 that one day Title IX would be interpreted to force schools to allow anatomically intact boys who psychologically ‘identify’ as girls to use the girls’ locker room, he would have been greeted with hoots of laughter. OCR [the Dept. of Education’s Office of Civil Rights] is simply engaged in legislating.”

Heriot’s testimony was so coolly professional and compelling that it caused Rep. Zoe Lofgren (D, Ca) to throw what people of a certain age will recognize as a hissy fit, interrupting Heriot’s testimony and sputtering “I think you’re a bigot, lady, I think you’re an ignorant bigot.”

The problem, from the Obama administration’s point of view, is that Title IX prohibits discrimination “on the basis of sex,” but it also explicitly states that “recipients [of federal funds] may provide separate toilet, locker room, and shower facilities on the basis of sex.” Nowhere in Title IX or its implementing regulations are transgender, sexual orientation, gender, or gender identity mentioned. In fact, the problem for Obama’s social transformers is even more daunting, for not only are those terms not included in the civil rights statutes but they have been proposed year after year and Congress has specifically refused to include them.

The Employment Non-Discrimination Act (ENDA) was first introduced in 1994. Significantly, for well over a decade the versions that were introduced in each Congress, controlled at various times by both parties, added only sexual orientation to the list of categories protected from employment discrimination. Gender expression and even gender identity were purposefully excluded. Even so, it never passed.

After an increasing outcry from the transgender lobby those terms were finally added, but with a notable qualification. “Nothing in this Act,” declared Section 8(a)(3) of the proposed Employment Non-Discrimination Act of 2011, “shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable.” Section 8(a)(4) added that “Nothing in this Act shall be construed to require the construction of new or additional facilities.” The LGBT community,” a progressive publication mourned, “has ceded the ground on social conservatives’ and the religious right’s arguments of ‘men in dresses’ using women’s public restrooms.”

But not for long: By 2013 that qualification had been removed, but to no effect since ENDA has still never become law, leaving even sexual orientation unprotected by federal employment statute. And the blame (or credit) does not belong exclusively to social conservatives and the religious right, since protections for gender identity and expression are also resisted by Democrats. In 2014, The Advocateobserved, even New York could not pass legislation protecting gender identity. In 2002 it passed a statewide bill protecting only sexual orientation, and “every year since 2003” legislation to protect gender identity and expression has failed.

So, since Title IX prohibits discrimination based only on sex, and Congress has repeatedly and pointedly refused to add even sexual orientation, much less gender identity and gender expression, to the categories protected from employment discrimination, how does the Department of Education justify its authority to require all schools and colleges to treat gender identity as sex? The short answer: poorly; the longer answer: the “pen and phone” overreach of ignoring law or making it up that we’ve come to expect from the Obama administration.

The new gender identity “guidance” the administration is attempting to impose on K-12 and higher education is based on the conclusion — arrived at, as Professors Suk and Schuck (both linked above) and the 11 state lawsuit have pointed out, without benefit of hearings or comment from the public as required by the Administrative Procedure Act— is that sex means gender and gender means gender identity.

Insofar as this extravagant and even revolutionary policy has any legal justification at all, it relies on an embellishment and extension of the analysis in a 1989 Supreme Court case, Price Waterhouse v. Hopkins. Ann Hopkins was denied a partnership because some partners found her personality and style aggressive and un-feminine. In order to improve her chances for partnership, she was told, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Noting that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,” the Court held “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

It is one thing to say that sex stereotyping can lead to sex discrimination when women are penalized for behavior that is rewarded in men. But it is quite a reach to claim that gender, divorced altogether from biology, is sex, that gender is determined entirely by subjective feelings, and hence that anatomical men who “identify” as women must be allowed to use women’s bathrooms and locker rooms and play on women’s athletic teams. No chasm, however, is too wide for progressive regulators to leap in their relentless pursuit of social transformation.

Even Obama may be ambivalent about the bathroom policy his minions are seeking to impose. On a PBS Town Hall a few weeks ago he sounded a bit dodgy, explaining that “Somehow people think I made it an issue. I didn’t make it an issue. “I just want to emphasize to you,” he added, “it is not like I woke up one day and said, ‘Man, what we really need to do is start working on high school bathrooms.’”

He did not have to say it, because he had staffed his administration with individuals whom he knew were determined to transform society’s sexual attitudes and practices. Take former Georgetown law professor Chai Feldblum (please!), whom Obama appointed to the EEOC in 2009 and who has described herself as “part of an inner group of public-intellectual movement leaders committed to advancing LGBT [lesbian, gay, bisexual, transsexual] equality in this country.” As I noted here shortly after her appointment, Feldblum had acknowledged that she wants “to revolutionize societal norms” regarding sex and gender. In order to gain approval, however, she did distance herself from some of her earlier positions, such as calling for the legal recognition of “committed, loving households in which there is more than one conjugal partner” and “queer couples who decide to jointly create and raise a child with another queer person or couple, in two households.”

With Feldblum on board, the Obama-staffed EEOC quickly set off down the path that would lead to sex being determined by subjective gender identity. In a 2010 case it acknowledged that although “Title VII’s prohibition of discrimination does not include sexual preference or orientation as a basis,” but, citing Hopkins v.Price Waterhouse, it nevertheless held that “Title VII does, however, prohibit sex stereotyping discrimination.” The complainant, a male (perhaps I should say a non-transgender male, since he was a male who “identified” as a male) “essentially argued,” according to the EEOC’s ruling, that a harassing co-worker “was motivated by the sexual stereotype that marrying a woman is an essential part of being a man, and became enraged when complainant did not adhere to this stereotype by announcing his marriage to a man in the society pages of the local newspaper.”

Similarly, in a 2011 case, the EEOC held that an ironworker could collect damages for harassment because his “supervisor harassed him because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical ‘rough ironworker.’”

In a 2012 case, also citing Hopkins v. Price Waterhouse, the EEOC extended its sex stereotyping rulings to transgender, finding “that the Complainant’s complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.”

The problem the Obamanauts faced here is that, simply as a matter of fact, one’s “sexual orientation” is not the same as one’s “sex,” and the law the EEOC was obligated to enforced did not prohibit — and Congress has repeatedly refused to amend it to prohibit — discrimination based on sexual orientation. Faced with an inability to rely on either the facts or the law, the EEOC simply declared that discrimination based on sexual stereotypes was really discrimination based on sex, and hence illegal, an assertion Roger Clegg convincingly demolished several years ago in testimony before the U.S. Commission on Civil Rights. “I would be curious to know,” Clegg asked, “if the administration officials could describe the situations in which they would not view discrimination on the basis of sexual orientation as also discrimination on the basis of sexual stereotypes that is, they think, therefore illegal.”

The concept of sexual stereotypes, in short, simply cannot serve to bring transgender issues under the protection of the prohibition of discrimination based on sex. To see why, consider if Ann Hopkins, the Price Waterhouse plaintiff, had instead been Al Hopkins, a transgender male turned down for promotion because of inappropriately dressing and acting like a man. The Obama administration argument is that this rejection of the hypothetical Mr. Hopkins is a form of sex discrimination, but exactly what or where are the “sex” and the “sexual stereotype”?

How could Hypothetical Hopkins have been discriminated against as a man acting like a man? Presumably the claim would be that he was not treated the same as other similarly situated men because he was still regarded, falsely, as a woman and thus violating the “stereotype” that women cannot be men. But that view is a “stereotype” only insofar as it is true that “gender identity” itself, absent surgical or pharmacological intervention, can displace “sex.” By what authority are the Obamanauts in the Departments of Justice, Education, and Labor authorized to make that determination?

The only alternative would be to claim that the hypothetical Mr. Hopkins was in fact still a woman, and thus, like the actual Ann Hopkins, a victim of discrimination for not acting the way women are supposed to act. But that argument became unavailable once the government issued its fiat that for the purpose of anti-discrimination law one’s “gender identity” is one’s “sex.”

The EEOC’s solution to confronting this conceptual muddle and obstinate law was classic, typical Obama: “construe” the law so that it conformed to their own agenda, and then proceed to claim, quoting their prior transgressions, that their preferred policies are settled law.

Thus we have a letter in the New York Times a few weeks ago by — who else? — EEOC Commissioner Chai Feldblum responding to Peter Schuck’s criticism of “the administration’s novel reading of the law” in its bathroom guidance. Her argument? Nothing novel here: “for the last four years, the Equal Employment Opportunity Commission has processed hundreds of complaints from transgender employees and applicants based on the commission’s legal ruling in 2012 that sex discrimination law prohibits discrimination against transgender people.” This amounts to adverse possession (if you trespass long enough, it’s not trespass) coming to civil rights law: if a regulatory agency unilaterally asserts some radical new reading of the law long enough, it becomes law.

Equally revealing, and even more extreme, is OCR Director Catherine Lhamon’s explanation of why the new transgender bathroom edict required no prior notice and public comment. It is not new law but merely states her agency’s interpretation of existing law. As The College Fix pointed out, “Lhamon’s explanation seems to be that Title IX’s original formulation in 1975 went through notice-and-comment, so any further OCR interpretation” — no matter how “novel” (Schuck), “new and surprising” (Suk), or just plain far-fetched — “needs no follow up opportunity for colleges and the public to weigh in” … and, courts must defer to the agency’s interpretation.

But if the administration’s view that discrimination on the basis of sexual orientation and even gender identity had been prohibited since the initial passage of Title IX, or at least ever since Hopkins included sexual stereotypes, then there was never any need for ENDA, and the years struggling to enact it were a waste of time.

Obama’s Justice Dept., EEOC, and Dept. of Education (via its Office of Civil Rights), has in fact been issuing actual or de-facto rulings that are not authorized by the law they are supposed to enforce. So far Congress has done nothing to stop them, but the trouble with revolutionaries is that their reach often exceeds their grasp, causing the pendulum of popular and even legal opinion to swing back directly at them. In her Congressional testimony, quoted above, Gail Heriot demonstrates that there are some limits, known generally as the non-delegation doctrine, whose revival she urges. Her fundamental complaint is that the recent bathroom edict is simply the latest example of a disturbing trend: “OCR routinely issues guidance that that are untethered to any plausible violation of Title VI or Title IX or to any rule lawfully promulgated pursuant to those statutes,” a charge that she supports with chapter and verse examples and with recommendations about what can be done to reign in the out of control agencies.

A Grimm Fairy Tale?

And it’s not just Congress that may be forced by the administration’s bathroom bullying to reconsider the extreme deference provided to regulatory agencies’ interpretations of their own powers. Writing on the National Constitution Center’s Constitutional Daily blog, respected Supreme Court analyst Lyle Deniston argues that a transgender case the Gloucester County, Virginia, school board is appealing to the Supreme Court could provide a strong challenge to the deference (known as Auer deference) courts have traditionally given to regulatory agencies.

A three-judge panel of the Fourth Circuit Court of Appeals recently ruled 2-1 that a transgender student, Gavin Grimm, who was born a female but identifies as a male, can sue his school board to gain access to the boys’ bathroom. In its statement of intent to file a Supreme Court appeal the school board charges that DOE and DOJ have sought to do “what Congress has not done — replace the term ‘sex’ with ‘gender identity’ in order to support an outcome unilaterally desired by the Executive Branch. This raises substantial questions concerning both federalism and the separation of powers” as well as “the individual’s right to bodily privacy.”

If the Dept. of Education had paused to listen to public comment, it would no doubt have been asked to explain how its new theory of what Title IX requires can co-exist with Title IX’s clear and undisputed text allowing schools and colleges to maintain “separate toilet, locker room, and shower facilities on the basis of sex.” The “Dear Colleague” letter from the Departments of Justice and Education to the nation’s schools and colleges states that “A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity.”

Here is the square peg / round hole problem entailed by treating gender as sex: Can that school prohibit a transgender student from using facilities that correspond to his or her sex at birth? Does OCR, in short, believe that Grimm, whose biological sex was and still is female, can legally be excluded from the girls’ bathrooms?

If so, that means that “gender identity” always trumps biological sex, with the result that in its zeal to create new transgender rights OCR has in effect obliterated sex as a meaningful category, making the recognition of sex-segregated facilities of any kind non-sensical. If not, that would mean that transgender students are afforded special rights: they could choose which bathroom to attend, while non-transgender students would be limited to the one that corresponds to their sex.

There is another, even more troubling aspect to what the Grimm story reveals about intrusive government overreach. It is the government’s position that even very young students are entitled to determine their own “gender identity,” sometimes even without the involvement of their parents. Thus Examples of Policies and Emerging Practices for Supporting Transgender Students the Dept. of Education recently distributed endorsed the policy of the District of Columbia Public Schools “noting that ‘students may choose to have their parents participate in the transition process, but parental participation is not required.’” That document also endorses a similar policy in Massachusetts that notes “Some transgender and gender nonconforming students are not openly so at home for reasons such as safety concerns or lack of acceptance. School personnel should speak with the student first before discussing a student’s gender nonconformity or transgender status with the student’s parent or guardian.”

As noted in the Fourth Circuit opinion, Gavin Grimm is now a sixteen-year old high school junior. Mrs. Grimm first presented the school board with their demands in August 2014, when Gavin was 15. Thus the Obama administration is arguing that even young — sometimes very young — students can determine their own “gender identity,” and hence “sex” for Title IX purposes, even though they have not even reached — some by many years — the age of consent to have sex anywhere in the United States. (The age of consent ranges from 16 to 18 across the country; in Virginia it is 18.)

(Tomorrow: transgenderism’s impact on school sports, dorms and feminism.)

The never-resting Office for Civil Rights (OCR) U.S. Department of Education and the equally insomnolent Civil Rights Division of the U.S. Justice Department have just issued their latest “Dear Colleague” letter advising the stewards of the nation’s schools of their newest responsibility.

The “Dear Colleague Letter on Transgender Students” consists of five pages of text, three pages of footnotes, and a notice on “language assistance” in the event that non-English speakers are puzzled by the newly enunciated need to avoid discrimination against transgendered and gender-transitioning youth.

The number of such youth is, by all accounts, vanishingly small, but they loom large in current public policy deliberations. Most notably, they have become hostages in the battle between the Obama administration and the state of North Carolina. As has been widely reported and discussed, the Tar Heel State has ruled that individuals should use public restrooms corresponding to their sex at birth.

This has raised questions of post-modern epistemology. As a matter of science, the sex of all humans is fixed at birth and is unchangeable. That sex is present in the chromosomes of every cell in the individual’s body. Even the most radical surgical, hormonal, and cosmetic interventions are powerless to change it.

But what is true of sex need not be true of the elastic concept of “gender,” which has been thrust on American culture as the all-purpose substitute for sex. As it happens, my discipline, anthropology, bears some responsibility for this. Way back in the 1930s, even before “gender” became the catchphrase, Margaret Mead was preaching the idea that cultures exhibit dramatic differences in the ways they define the proper temperaments of men and women. Masculinity and femininity are, as we have learned to say with due solemnity, “culturally constructed.” The men of the Tchambuli tribe in New Guinea, said Mead, are prissy and feminine by our standards; the women, all-business and managerial.

No need to elaborate. For many decades, social science along with legions of Tchambuli-like American feminists have run with the idea that gender is “socially constructed.” And what one Tchambuli can construct, another can deconstruct, and yet another reconstruct. It took us a while to get all the way to the destination that people should feel free to make up their own genders, but at long last the Office for Civil Rights has set us straight. Though that is probably not the right word.

But, as I said, we face epistemological complications. The civil rights theory of transgender rights posits that “gender identity” is an inherent fact in the individual, which is to say that it sounds a lot more like what we used to call the individual’s sex. If so, it is not “culturally constructed,” but somehow given in the nature of the individual. In which case, it isn’t “gender” at all, and cannot be the basis for gender discrimination.

But let’s not quibble. Intellectual coherence isn’t what we require of federal agencies devoted to progressive social justice. Progress is what we expect. The “Dear Colleague” letter begins with a statement of seeming fact:

Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students.

It is “parents, teachers, principals, and school superintendents” who are concerned about “civil rights protections for transgender students.” OCR is simply providing the answers that are needed in these troubled times.

It is small measure of how badly these answers are needed that I passed through 22 years of formal education and more than 25 in college and university teaching without knowingly encountering a single transgendered student. I realize this now to my shame. How many students did I address by cis-gendered pronouns while thoughtlessly assuming that their apparent sex matched their inner gender identities?

Well, perhaps none, but still it is possible. It happens. A faculty member at a large public university wrote to me this week on exactly this matter. He incorrectly used the pronoun “he” in reference to a Japanese author whose “gender identity” he didn’t know. A transgendered student in the class promptly filed a complaint with the university, which has summoned the faculty member to meet with the dean to ensure that such a transgression is not repeated. The faculty member has so far not made his travail public, perhaps out of the hope of saving his university the ignominy of appearing on an OCR blacklist for its overly lenient handling of the case.

What the OCR letter provides, of course, is an astonishing annexation of new power to the federal government. Humanity is capable of all sorts of twists and turns when it comes to sexual appetites and personal identities. Societies attempt to impose some order on this, and Margaret Mead was not wrong in observing that the ordering ideas vary from place to place. The social norms that prevail at 400 Maryland Avenue, SW, Washington, DC 20202, where the tribe of OCRians reside, for example, differ from the social norms in North Carolina and most other civilized places.

We need to make allowance for these differences lest we fall into a pattern of inadvertent discrimination.

By OCR’s account “Compliance with Title IX” requires that as a condition of receiving federal funds, schools “not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.” When North Carolina boldly put itself in complete compliance with this law by insisting that “sex” means sex, it ran afoul of the OCR conception that “sex” means self-invented “gender identity.” To that end, schools are supposed to provide transgendered students access to the “sex-segregated restrooms and locker rooms,” of their own choice.

OCR’s advice on athletics is a bit more complicated. Schools can still differentiate among students on the basis of (real) biological sex provided they do not “rely on overly broad generalizations or stereotypes,” or act on “others’ discomfort with transgender students.”

I was briefly under the impression that “discomfort” was an index of oppression, and where discomfort exists, surely OCR regulatory assuagement must follow. But no, the discomfort of transgendered students faced with normative expectations of sexual identity is a crisis. The discomfort of the “cis-gendered” is just their tough luck.

I can’t unravel this mystery here, though I note that many commentators are giving it their best effort. The only thing clear to me is that OCR has reached such an apotheosis, that it now has the power to overrule nature and command our very chromosomes to obey its dictates. We’ll see how that works out.

Peter Wood is president of the National Association of Scholars and author of “Diversity: the Invention of a Concept.”

This is an age of gender fluidity, when many are embarrassed to be caught occupying one of the two traditional gender identities year after year, as if no progress at all has been made on the gender frontier. Not Evelyn Waugh, however. The great British writer lived 63 years as a man, and if he is still paying attention, he undoubtedly has noticed that Time magazine listed him last week as the 97th most-read female writer on campus today.

Though nobody knows why Waugh did it, it’s fair to say that changing one’s sexual identity 50 years after one’s death is still considered unusual. A few wags have suggested that Waugh headed for the female list of all-time writers out of cowardice: he feared he wouldn’t make the top 100 if he had to face big-time male writers like Shakespeare and George Eliot.

That would have been unworthy. Still, we all know that Time rarely makes things up, so there must have been some indication that Waugh was ready for a change, even after so many quiet, basically decision-free years. For evidence, Time likely looked to Waugh’s autobiography, which reveals him/her fretting that people took Evelyn as a girl’s name. Didn’t Freud teach us that things often mean their opposite? So it fair to deduce, as Time’s editors obviously did, that fretting=yearning.

Also, Waugh tellingly had a long romance with a woman named Evelyn. This was no coincidence but a clear indication (how did we miss it?) that he/she identified so immensely with the girly name and considered marriage as a way of possessing even more of it, until internal conflict forced him to put off the big gender decision until the quieter time after death.

Besides, the writer’ full name was Arthur Evelyn Waugh, so if he wasn’t committed to a long and exhausting 116-year march toward a fresh gender identity, as now seems likely, why didn’t he just call himself Artie Waugh? No, Time magazine is right. Waugh wanted change and sought it boldly, though perhaps a bit slowly.

John Leo is the editor of Minding The Campus, dedicated to chronicling developments within higher education in an effort to restore balance and intellectual pluralism to our American universities. His popular column, "On Society," ran in U.S.News & World Report for 17 years, and was syndicated to 140 newspapers through the Universal Press Syndicate.